IP Rights at Trade Fairs
A) Preparation of your own trade fair appearance
Registration of industrial property rights
Do you want to exhibit your new products at the next trade fair? Then you should definitely clarify in advance whether your products are sufficiently protected by industrial property rights. In addition to the product name through trademark protection, this also applies in particular to technical functions or the design of a product. However, patents, utility models and design patents require that the technical teaching or the design of the product is new, i.e. that it has not been made available to the public before. As soon as a product is exhibited at a trade fair, it is typically no longer new, but belongs to the state of the art or to the previously known design vocabulary. Before exhibiting at a trade fair, you should therefore check whether your new products are eligible for patent and/or utility model protection and, if necessary, file the corresponding applications before exhibiting at the trade fair or, if necessary, on the day of exhibiting at the trade fair.
Protection against preliminary injunctions by filing a protective brief
It is a well-known fact that competition stimulates business. However, a competitor may also feel disturbed by the exhibition of your products at a trade fair and may feel compelled to take legal action against this in the form of a so-called injunction in order to prevent the advertising of your products at the trade fair, at best completely.
If you are already aware of a potential applicant for an injunction against one of your products, you can file a so-called protective letter in advance with the central electronic protective letter register. This will be deemed to have been filed with all ordinary courts. The protective letter is intended as a preventive means of defence to prevent an injunction from being issued without an oral hearing or an application for arrest from being granted in preliminary injunction proceedings. Even if there is no oral hearing, the court must take the contents of the protective letter into account when deciding on the preliminary injunction.
There is no obligation to be represented by a lawyer when filing a protective brief. However, the assistance of a lawyer is strongly recommended to ensure that the protective letter contains all the relevant information that the court needs for its decision with regard to the possible allegation of infringement. Coordination with your legal representative in this regard should take place in good time before your participation in the trade fair.
B) Enforcement of IP rights against counterfeiting at trade fairs
Do you suspect that products are being offered at a trade fair relevant to your industry that infringe your IP rights? Then you should prepare possible steps against suppliers of such products well in advance of the trade fair.
Interim injunction to prevent participation in the trade fair
If you already know which products of a competitor are to be exhibited at the trade fair, you can apply in advance to the competent court for an injunction. As soon as such an injunction has been issued by the court, the supplier concerned is subject to an obligation to cease and desist. This means that, at best, an appearance by the supplier of the infringing products can be prevented even before the trade fair begins.
Preservation of evidence at the trade fair
However, it will often be the case that you do not yet have precise knowledge of which products will be exhibited at the trade fair and what they are actually like. In such cases it may therefore be necessary to examine the products more closely at the trade fair in order to be able to confirm the suspicion of infringement and to secure corresponding evidence (e.g. by means of photographs or videos). Particularly in the case of technical property rights, this inspection should be carried out by appropriately trained employees who can call on the support of patent attorneys or attorneys-at-law - if necessary, even directly on site.
In this context, it should also always be borne in mind that a wrongfully issued preliminary injunction may trigger claims for damages by the party concerned against the applicant for such an injunction, so that the infringement issue should be examined in detail before such a measure is initiated.
Out-of-court warning/interlocutory injunction
As soon as it is certain that one's own IP rights are infr
inged by the products offered at the trade fair, haste is required, because typically the aim now is to stop the distribution of these products as quickly as possible. Trade fairs often only take place for a few days.
Contact should now be made immediately with a legal representative and the evidence obtained about the infringement should be made available to him. Then a decision will have to be made on the further legal steps, which will typically include an application for an interim injunction together with a preliminary warning. Whether this is the right remedy must, of course, be carefully examined for each individual case.
As soon as an injunction has been issued by the competent court, the responsible bailiff should be contacted immediately so that he can serve the injunction on the supplier at the trade fair as quickly as possible. It is advisable to accompany the bailiff either yourself or through your own legal representatives in order to be able to assist in the enforcement of the injunction. Particularly in the case of technical IP rights, the bailiff, who is usually not familiar with the technology in question, can be pointed to relevant infringing products.
C) Receiving an injunction at a trade fair - what now?
Have you been served with an injunction for the exhibition of your products at a trade fair? Then you should immediately contact a patent attorney or lawyer to discuss further steps and prepare any countermeasures. To this end, you should immediately send the injunction served on you to your legal representative.
In particular, your legal representative will discuss with you whether the interim injunction was granted to the other party without justification and, if so, file an objection to it as soon as possible.
Implementation of the interim injunction
If you have received an interim injunction, comply with it. Otherwise you may be subject to severe penalties, including an administrative fine or imprisonment.
Negotiate waiting period
In order to gain time to react to the interim injunction, it is advisable to negotiate as generous a waiting period as possible with the applicant. This will give you and the legal representation the opportunity to carefully review the claims asserted and develop an appropriate defence strategy.
Documentation
It is important that you already prepare full documentation of the events in connection with the service of the interim injunction at the trade fair, because typically, in the event of an objection to the interim injunction, a hearing in court does not take place until some time later, so that even in the event of an unjustified interim injunction, your trade fair appearance has in fact been prevented.
The documentation should primarily focus on the lost profit due to the injunction. It could be important here whether sales talks regarding the products concerned were not (further) conducted and orders could not be placed as a result. If the injunction should subsequently prove to be unlawful, claims for damages can be asserted against the applicant on this basis.
